No, the end result is simply is he detained or not.

The key question is why of the 1,250,000 Taliban one man is being tried and that man happens to be Australian. THe remaining 1,249,999 Taliban have all been released by the current Afghani government. Why is one Australian being treated any differently.

The legal status of "unlawful combatants", has been the subject of criticism by international human rights institutions; including Amnesty International, Human Rights Watch and the International Committee of the Red Cross.

In response to the US-led military campaign in Afghanistan, a legal advisor at the Legal Division of the ICRC, published a paper on the subject (which reflects the views of the author alone and not necessarily those of the ICRC), in which it states:

Whereas the terms "combatant" "prisoner of war" and "civilian" are generally used and defined in the treaties of international humanitarian law, the terms "unlawful combatant", "unprivileged combatants/belligerents" do not appear in them. They have, however, been frequently used at least since the beginning of the last century in legal literature, military manuals and case law. The connotations given to these terms and their consequences for the applicable protection regime are not always very clear.
Human Rights Watch have pointed out that in a judgement, the International Criminal Tribunal for the Former Yugoslavia interpreted the International Committee of the Red Cross, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: 1958) to mean that:

There is no gap between the Third and Fourth Geneva Conventions. If an individual is not entitled to the protection of the Third Convention as a prisoner of war ... he or she necessarily falls within the ambit of [the Fourth Convention], provided that its article 4 requirements [defining a protected person] are satisfied.

The implication is that the status of unlawful combatant does not exist, as a person is either a combatant, or a civilian. If found to be civilian, then they may have committed some criminal acts, for which they can be punished under criminal law, that if committed by a combatant would not be illegal under the laws of war.

The introduction of the unlawful combatant status sets a dangerous precedent. When the government of Liberia detained American activist Hassan Bility in 2002, Liberian authorities dismissed the complaints of the United States, responding that he had been detained as an unlawful combatant.

Remember the Alamo!

What the American's are saying is that Daniel Boon and the other "irregulars" were also Non-Lawfal Combatants. Peter Lalor might also have something to say on the matter. Wouldn't the French Foreign Legion also have some difficulties with Non-Lawfullness.

Thank you, Neil James for taking the time to write such an enlightening article. The problem for most of the "bleeding heart" lawyers and others who comment on David Hicks is that they basically seem to start from the perspective that anything involving the US Government is "Bad" and that any matter on which the Australian Government and the US Government agree upon means that the Australian Government must also be "Bad".

Neil James's article is far more balanced and demonstrates that the whole David Hicks matter is complex. For Australians such as I (I suspect the vast majority of Australians) the matter is far more straightforward. David Hicks took up arms with the Taliban and given the opportunity would have fired on Coalition Troops whether they be American or Australian. For this reason I have no time at all for David Hicks, but do hope that the matter can be brought before a US Military Commission as soon as possible.

Sniggid,

The holding of David Hicks is a complex issue, but no action committed by Hicks or the other 300(?) or so "Detainees" in legal limbo can be justified.

The US Government knows that they are on dubious ground. They have suspended Hick's right of Habeas Corpus and have denied him the POW status. US Citizens in the same position were released because the US Constitution guaranteed them Habeas Corpus. British citizens were released because the UK Government demanded that Habeas Corpus was applied. Our Government chooses to ignore the Civil and Political Rights of this individual. Afghan citizens were released because they were just defending their sovereign nation from a hostile invader (just as Texan's would if Mexico were to invade).

The act of holding these people outside of any real legal juristiction, ignoring the International Convention on Civil and Political Rights, and the unprovoked attack on Afghanistan makes both the US and the Australian Governments just as "Evil" as the people that took up arms to defend Afghanistan from an aggressor.

This is an interesting article.

If the problem really is one of properly defining Hicks' legal status and then applying the laws appropriate to that status, then I could probably (reluctantly) accept some form of detention for him, but only if it could be demonstrated that this was absolutely necessary.

However nothing, nothing at all, can justify to me the conditions in which prisoners seem to be kept at Guantanamo Bay. Nothing can justify the reluctance of the USA to allow proper international scrutiny of that facility. Even if he were a convicted criminal of the worst sort, I would expect him to be imprisoned in a humane manner, in a facility available for inspection.

Whatever he has done, whatever he intended to do, I find myself thinking that four years in Guantanamo Bay is punishment enough.